Folks can be evil. They just don't do that.

There’s one good cause that seems to be doing just fine: Free Software Foundation’s Defective by Design. They’ve been campaigning against ridiculous digital rights management schemes and other really blatant trampling on common-sense consumer and user rights.

Their latest crusade is against Nintendo 3DS. I really wondered what took so long for them to start slagging on Nintendo, the company that practically invented screwing with the consumer by technological means.

Wait, you say - Nintendo? Screwing the consumer? Unheard of, you say?

Exactly.

And this is why fighting the war against technological malevolence is going to be really hard.

Here’s the funny thing: As a gamer, I have almost nothing but good to say about Nintendo. They have made awesome, innovative games and awesome, innovative console platforms. While I’ve played Nintendo games since NES days, I’ve really loved GameCube, Wii, Gameboy Advance and DS. Okay, Wii kind of sucks these days when there’s no really big interesting releases for it, and I don’t play mobile games as much as I played before. (Mostly because my DS’s battery is starting to suck, and the new models don’t play GBA games.)

But as a geek, I can easily point out that Nintendo was the company that brought DRM to the consumer consciousness. It started with the lock-out chips in the NES; ordinary consumers were told of subtle region differences, and if I had had a clue when I was a kid, I could have seen that the “piracy prevention” is just another way of saying “no running unauthorised code”, which is just another way of saying that the devices aren’t fun to develop homebrew games on - limiting the consumer creativity.

And even today, Nintendo is pushing firmware updates to Wii. Your average consumer is probably saying “OK, there’s been dozens of updates - what the hell do these updates actually do?” …nothing. Majority of the updates nix security holes that allow homebrew software to run and don’t add user-visible features.

It’s undeniable that Nintendo is a Big Evil DRM-pushing Company. They have nasty lawyers ready to attack every infraction. And what do they do?

Not much. Yeah, there’s the occasional whacking, but Nintendo is surprisingly silent most of the time.

I don’t have the reference for this claim, but I remember seeing an article a while ago about some Nintendo manager’s feelings on some of the hacks people had done on the games. They were conflicted about them: Obviously, they didn’t like the fact that people had messed with their games and had defeated their protection schemes… but they also liked the creativity of the users.

Ask anybody, and you get the same answer: Nintendo loves their fans, even when the fans are out of line.

Which is, I think, a very human reaction, and a reaction we can respect. While “corporate persons” are often described as either single-minded goodyshoes or psychopaths in psychological view, here’s a company that appears to have a complex personality. Some bad sides. Lots of good sides.

What this comes down to is a rather strange game plan. Fights are easier when there are clear heroes and clear villains. The problem is that Nintendo is anything but a clear villain. They’re not a diabolical baby-killing megacorporation. They’re a Truly Worthy Adversary.

And many other DRM-pushing companies are like this, though they tend to be less focusing on the “fun” part. They’re not Truly Worthy Aversaries, but rather Boring Old Patsies Who Spread the Evil.

Nobody wants to fight Apple; they build good solid computers. That makes them the Boring Old Patsies. They also make cellphones and tablets locked to hell and back. They Spread the Evil. And the fight is complex because people think the Boringoldpatsitude more than they think of the Spreadtheeviltude.

Another problem is that while there DRM pushers and intellectual property sharks take rights, they rarely act on this stuff.

Let’s look at Defective by Design’s claims about Nintendo.

Nintendo has apparently put a rights-grant clause in their user agreement. This sort of rights-grant clause is fairly typical in online services; basically, the user grants the service host a right to use their content how they wish within that service.

I’m all for such clauses, as long as they make their own accepted use clear. The clauses are usually just meant to allow the service operators to modify and distribute the images as normal part of the service operation; this is to prevent you, as the copyright holder, from saying “no thumbnails below 120x120px allowed” or “can’t distribute these pictures to Missouri, even in form of Internet packets temporarily passing through the state, just because my evil ex lives there and this was part of the divorce settlement” and causing immeasurable headaches to the service operators.

Nintendo goes a little bit further, however:

“…to incorporate your User Content in other works, in any form, media or technology now known or later developed, including for promotional or marketing purposes.”

…though these days, they’re hardly not alone in this, because Google basically says the same thing.

Now, you can just assume there’s some good faith on Nintendo’s part, that they keep the material inside Nintendo’s services and don’t actually use the content in “evil” ways. Still, if you give the right to use your material for “marketing” purposes, you can do little but wonder if there’s some odd uses for your photos. For example, there was a recent controversy about TwitPic selling pictures without user consent, citing the rights-grant clause in their terms of service. I’m pretty sure that selling photos to third parties isn’t about keeping the stuff rolling within the service or promotion, though.

But this pales next to a bigger, more relevant question. Nintendo has reserved the right to use user-created content.

Will they use the user-create content?

This is the big, annoying question. I want you to think hard about it.

Not all companies are like TwitPic, or other companies who stuck in the rights-grant boiler plate to their TOSes without understanding why they do it. People squeal really hard if some company goes out of the line utilising their rights-grant clause.

The fact that Nintendo is reserving the right, without - in all likelihood - actually going to do any evil stuff, is one of the reasons why this DRM fight is so difficult.

This is kind of like the situation with the MPEG4 and H.264 patents. The patents-holders have all sorts of odious, evil rights to user content stashed away. The annoying thing is, they can’t exercise those rights without a massive user backlash. If H.264 folks started charging fees for Internet video streaming now, as they’re allowed to do but currently don’t elect to, they’d be absolutely screwed.

And that’s the evil rights-grabber’s dilemma. People who elect to do this sort of stuff should really start to realise, by now, how absurd all this is. People notice nefarious stuff. They start to question your status as a Truly Worthy Adversary. If you clearly and blatantly violate the trust of your users, you’re no better than the diabolical baby-killing megacorporations. In this day and age, people notice and people remember.

The only way to get out of that is to make it more explicit what the rights grabs are for, and make sure you don’t grab more rights than it’s necessary for your service to function properly. I think the rights-grant clauses in TOS boilerplates should all just go out and say what the grants are there for and, especially, how they’re going to be applied. It’s preposterous that this sort of hard-to-parse clauses have sat in the TOSes of all major web services for over a decade and counting. Make it clearer. Please. Just call it a “technological rights grant” or something, and let it go through WIPO or something.

Defective by Design does make a good point that these rights grants should not be require to use the hardware as intended. Such clauses only make sense if the images are stored online on a third-party server. I have a couple of cameras, they all stick stuff on solid-state memory or memory cards, and the images won’t hit an online service until I say so. I assume the situation is the same on 3DS.